Copyright Information and Links

NOTE: The opinions expressed on this page are my personal interpretations of the United States of America copyright laws that I've quoted on this page, and are in no way intended or meant as professional legal advice.

For a professional and legal interpretation please consult a Copyright Lawyer.


Topics:
Background - how this came to pass
Basic Copyright - what is it?
Pitfalls of Basic Copyright
What about derivative works?
What can I do?
Poor Man's Copyright

Background - how this came to pass

In early May 1998, I discovered eight different sites that I did not know about that were using background graphics I had created. I wrote to them and informed them I was the originator of the graphics and pointed them to my original graphics, and requested either attribution/link-back or removal of the graphics from their sites.

The webmeisters of three of the sites thanked me for the information, and added attribution and link-backs, and sent the URLs of the sites from where they had obtained the graphics.

One webmeister had the presence of mind to forward our joint queries and questions to a lawyer; the lawyer wrote back to both of us, clarifying copyright law enough that I realized my entire site was vulnerable, and also that I could not legally claim the background graphics at all.

This in turn resulted in my own research into copyright laws as they currently stand, and the subsequent removal of all of the wolf-based background graphics from my pages.

What I learned is detailed in the following pages.

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Basic Copyright - what is it?

Technically, my art, writings, poetry and website were copyrighted the instant I saved them to disk as stated by the Copyright Office (italics mine): 

"Copyright Protection is Automatic"


"Under the present copyright law which became effective
January 1, 1978, a work is automatically protected by 
copyright when it is created.  A work is created when 
it is "fixed" in a copy or phonorecord for the first time.  
Neither registration in the Copyright Office nor publication 
is required to secure copyright under the present law."

This is also backed up by Copyright Basics, which states in part: 

"WHO CAN CLAIM COPYRIGHT"

"Copyright protection subsists from the time the work 
is created in fixed form.  The copyright in the work of 
authorship immediately becomes the property of the 
author who created the work. Only the author or those 
deriving their rights through the author can 
rightfully claim copyright."

Italics mine; this has implications for derived work

Legally, then, your creations are copyrighted the moment they are placed in "fixed form" - even if you have not placed the standard copyright statement on or in the creation. This, however, does lead to exposure as described below in "Pitfalls."

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Pitfalls of Basic Copyright

The basic copyright only gives you recourse to recovering any profits the thief made from your creation, and prevents the person from using your creation. You cannot sue for punitive damages.

If, however, you have actually registered your creation and obtained the copyright certification from the United States Copyright Office, you can then sue the person not only for lost profits, but also for compensatory and punitive damages.

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What about derivative works?

Or, "How much do I have to change someone elses' material in order to claim it as my own, derivative work and copyright that derived work?"

You cannot - not without the original creator's permission, and not without changing it so much that it has become a totally new work.


The Copyright FAQ states: 

"Only the owner of copyright in a work has the right to 
prepare, or to authorize someone else to create, a new 
version of that work. Accordingly, you cannot claim
copyright, no matter how much you change it, unless 
you have the owner's consent. See 
Circular 14."

Circular 14 states the following about derivative works (I've italicized critical passages for emphasis): 

"A `derivative work' - that is, a work that is based
on (or derived from) one or more already existing 
works--is copyrightable if it includes what the 
copyright law calls an "original work of authorship."  
Derivative works, also known as "new versions," include 
such works as translations, musical arrangements, 
dramatizations, fictionalizations, art reproductions, 
and condensations. Any work in which the editorial 
revisions, annotations, elaborations, or other
modifications represent, as a whole, an original work 
of authorship is a "derivative work" or "new version."


A typical example of a derivative work received for
registration in the Copyright Office is one that is 
primarily a new work but incorporates some previously 
published material.  This previously published 
material makes the work a derivative work under the 
copyright law.


To be copyrightable, a derivative work must be 
different enough from the original to be regarded as 
a "new work" or must contain a substantial amount of 
new material. Making minor changes or additions of 
little substance to a preexisting work will not qualify 
the work as a new version for copyright purposes.
The new material must be original and copyrightable in
itself. Titles, short phrases, and format, for example, 
are not copyrightable."

So, if you were to scan in a photograph taken by someone else - whether you got it from a newsgroup, ftp site, or magazine - and then crop and emboss that photograph to create a background - you could not copyright the resulting graphic as (1) you did not obtain permission from the original photographer, and (2) the resulting graphic is still recognizable as being derived from the photograph.

If you create a graphic from a scanned postcard, greeting card, or similar item to create an award or graphic for your page - the act of adding a beveled border and award text does not constitute sufficient changes to that graphic to warrant your copyrighting the resulting art. Plus, again, there is the question of obtaining permission from the original artist.

You would be exposing yourself to copyright violation, unless you had obtained written permission from the copyright holder of that photograph or art to perform the modification and use the result.

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What can I do?

The best thing to do is to copyright all of your work as described by The United States Copyright Office home page.

Before you obtain the copyright via the United States Copyright Office - or even if you chose not to - it is highly advisable to place a copyright statement on each item you've created. As noted in Circular 40: 

For works first published on and after March 1, 1989, use of
the copyright notice is optional though highly recommended.
Before March 1, 1989, the use of the notice was mandatory on
all published works, and any work first published before that
date must bear a notice or risk loss of copyright protection.

Use of the notice is recommended because it informs the public
that the work is protected by copyright, identifies the copyright
owner, and shows the year of first publication.  Furthermore, in
the event that a work is infringed, if the work carries a proper
notice, the court will not allow a defendant to claim "innocent
infringement"--that is, that he or she did not realize that the
work is protected.  A successful innocent infringement claim may
result in a reduction in damages that the copyright owner would
otherwise receive.

Form of Notice

A proper copyright notice for works of the visual arts consists
of the following three elements:

1. The symbol © (the letter C in a circle), or the word
   "Copyright," or the abbreviation "Copr.";

2. The year of first publication of the work; and

3. The name of the copyright  owner, or an abbreviation by which
   the name can be recognized, or a generally known alternative
   designation of the owner.

Example: © 1995 Joan Jones

The year may be omitted where a pictorial, graphic, or
sculptural work, with accompanying text, if any, is reproduced
in or on greeting cards, postcards, stationery, jewelry, dolls,
toys, or any useful article. In the case of a compilation or
derivative work incorporating previously published material, the
year date of first publication of the compilation or derivative
work is sufficient.

Position of Notice

The notice should be permanently attached to the copies, legible
to the ordinary user, and placed in such manner and location
that it gives reasonable notice of the claim to copyright. It
must not be concealed from view upon reasonable examination.

So - what do you do if you cannot afford the legal copyright?

Not much. You can add the copyright statement as described. You can then do what is called a "Poor Man's Copyright."

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Poor Man's Copyright

  1. Insert or add the copyright statement as described above to each page and graphic.

    Either:

    • Print out every web page - including graphics

      OR:

    • Save the entire web site to a CD-ROM. The Copyright Office and courts will not accept computer disks.

  2. Place the printouts and CD-ROM in a mailable envelope or box, then send it to yourself via registered snail mail.

  3. Do not open the package; instead, place the unopened package in a very safe place, such as a safety-deposit box.

Now, if someone does steal and use your creation without permission, you have proof in the form of the registered unopened package that you can present to the courts.

Remember, however, that all this gives you is the ability to force the thief to no longer use your creation, and to sue the thief only for profits made from use of your creation; you cannot sue for punitive damages.

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[an error occurred while processing this directive] Last updated: Saturday, 03-Jan-2015 18:09:40 PST